dissenting.
I cannot agree with the majority that the evidence in the record is sufficient to support the verdict that plaintiff was damaged in the sum of $59,488.31. The only evidence in this record as to the value of the stolen jewelry comes from the list prepared by Ms. Daniels. Mr. Ashendorf testified that the value of the items stolen was calculated based on a list of the wholesale values which he had prepared eight months before the loss. It must be remembered that the plaintiff sold the jewelry at wholesale. It is clear that Mr. Ashendorf s figure of $59,488.31 included the price for which the plaintiff had purchased the jewelry plus a reasonable profit. The burden is on the plaintiff to establish the amount of damage it sustained because of the loss of the jewelry due to the negligence of defendants. Since the measure of damages is the fair market value of the jewelry stolen, it does not seem unreasonable to require plaintiff to offer evidence of the fair market value of the jewelry stolen. While the testimony of Mr. *32Ashendorf may be some evidence of the value, I am not satisfied that this evidence alone is sufficient to support the verdict, and this is especially true, in this case, where the judge’s instructions to the jury with respect to damages are so inadequate as to afford the jury no guidance whatsoever in answering the issue as to damages. Indeed, the court did not even instruct the jury that plaintiff was entitled to recover only the fair market value of the jewelry if it determined that plaintiff was entitled to recover. I realize that defendant did not object at trial to the instructions, as required by Rule 10 of the Rules of Appellate Procedure. I also realize that the erroneous and prejudicial instructions as to damages did not afford defendant a fair trial on this issue and could very well have led to a miscarriage of justice because of the lack of definitive evidence as to the fair market value of the jewelry stolen. I vote to award defendant a new trial on the issue of damages alone.